Sometimes a medical certificate isn’t enough

When does an employer have the right to seek more information from a sick employee despite receiving a medical certificate?

Earlier this year, the Federal Circuit Court of Australia confirmed an employer’s right to reasonably require an employee on paid personal leave to attend a medical examination to confirm their incapacity to work. But what if a medical certificate has been provided and the employer still isn’t satisfied?

On one view, an employee’s medical prognosis is private, and need not be disclosed to an employer. That said, if a medical certificate provides insufficient information for an employer to understand when and how an employee will return to work, maybe the employee should be required to disclose more information.

Employers are often uncertain whether they can seek more information from a sick employee, so we’re here to set the record straight.

The recent decision of the Fair Work Commission (FWC), Tawanda Gadzika v Australian Government Department of Human Services [2018] , provides some guidance.

Insufficient evidence

Mr Gadzika commenced employment as a graduate with the Australian Government Department of Human Services (DHS) in January 2014. In June 2016, Gadzika commenced a period of unpaid sick leave associated with a mental health condition.

In late 2017, DHS advised Gadzika that his authorised unpaid sick leave would end in January 2018, and that he would need to provide DHS with a medical clearance prior to returning to work. Despite this, Gadzika remained absent from work during January 2018.

From 24 January 2018, Gadzika’s absence from work was unauthorised. In February, DHS sent him a notice of intention to terminate his employment in light of his unauthorised absence from work and the non-performance of duties.

After almost a month of unauthorised absence from work, Gadzika finally provided DHS with a two-line medical certificate from his doctor stating that he was able to return to work on “modified duties”. The medical certificate recorded (only) that, Gadzika could “perform light duties” for “5 hours per day, 3 days per week”.

In response to the medical certificate, DHS still required further information from Gadzika, seeking clarification regarding what was meant by “light duties”, how long the “light duties” should be maintained for, and whether five hours of work per day were confined to any particular times of day.

After Gadzika failed to adequately respond to DHS’ requirement, DHS terminated his employment.

Gadzika filed unfair dismissal claim, seeking reinstatement. He argued that DHS impeded him from returning to work, was determined to get rid of him, and responded inappropriately to the medical certificate that he had provided.

The employer’s point of view

DHS said that it:

terminated Gadzika’s employment for a valid reason, being his unauthorised absence from work and non-performance of duties;

treated Mr Gadzika fairly; and

in the circumstances, responded reasonably to the medical certificate provided by Gadzika, including by requiring further information.

FWC’s findings

The FWC found that Gadzika’s unauthorised absence from work and non-performance of duties was a valid reason for dismissal.

With respect to procedural considerations, the FWC praised DHS for being “lenient in its dealings with Mr Gadzika”, by giving time extensions to respond to DHS, as well as consistently reminding him that his absences were no longer authorised.

As for the DHS’ response to the medical certificate, given that Gadzika’s doctor had previously deemed him unfit for work, the FWC found that it was reasonable to require an appropriately detailed medical certificate.

Arguably, privacy considerations might ordinarily curtail an employer’s right to require more information about an employee’s medical prognosis after a medical certificate has been provided.

The FWC, however, indicated than an employer can require further information about an employee’s medical prognosis despite the provision of a medical certificate in particular circumstances.

Leniency and respect

Gadzika’s case suggests that an employer can require information relating to an employee’s prognosis after a medical certificate has been provided to the extent required to ensure a safe working environment, particularly in circumstances where an employee has previously been deemed unfit to work.

That said, the attention given by the FWC to DHS’ “lenient” treatment of Gadzika is a reminder that fairness remains a paramount consideration. Certainly, employers should always treat sick employees with care and respect.

Abraham Ash is a partner and Tim Grellman is a lawyer at Clayton Utz.

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Sandyseashore

Requiring more information is all well and good, except when private information is shared with other people in the business. This happened in my case. I was already suffering from depression and anxiety from being bullied, but then finding out that really personal private information was shared, well, I became suicidal and ended up in a mental health hospital for a while.

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4 months ago

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Cathie

Point 1. A person experiencing a mental illness is sometimes unable to respond to requests and demands. This in itself is a consequence of the illness.
Point 2 Thankfully, the stigma associated with mental illness is being broken down. However, there is no guarantee that an employer will be enlightened and carry prejudice.
Point 3 There would be a need for policies in relation to who has access to detailed information and guidelines with regard to privacy and confidentiality

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4 months ago

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William Forgan-Smith

I am wondering what contact DHS had with the treating doctor. I can think of two cases where I had the treating doctor provided with information about an employee’s work opportunities; about the workplace; as also the support the organisation could and would give to reintegrate into the organisation. In one of the cases this led to a favourable outcome – indeed the person quickly returned to full time duties – and in the other to the doctor reporting “this man is a malingerer.” I doubt that has been often put on a medical certificate! (The chap got the message… Read more »